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Warner Files Amicus Brief with U.S. Supreme Court Regarding Class Certification

Warner attorneys have filed an amicus brief in the U.S. Supreme Court supporting the petitioner in Visa Inc. v. National ATM Council, Inc. No. 23-814, on behalf of the DRI Center for Law and Public Policy — the public policy “think tank” and advocacy voice of the Defense Research Institute.   The case presents an issue of particular importance to class action defense lawyers: the watering down of the “rigorous analysis” required for class certification in several circuits.  In Visa, Inc., the District of Columbia Circuit affirmed certification of a class comprised of hundreds of millions of individuals even though the district court failed to rigorously assess whether common issues predominated and even though there was a material dispute as to whether the class contained many uninjured persons.  The district court’s “notably terse” predominance analysis had found that plaintiffs “need only demonstrate a colorable method by which they intend to prove class-wide impact” at the certification stage, and found it unnecessary to resolve a material factual dispute as to whether the plaintiffs’ model swept in substantial numbers of uninjured plaintiffs without any mechanism for removing those individuals. By affirming this method, the District of Columbia Circuit joined two other circuits in finding that material factual disputes among the parties pertaining to class certification need not be resolved, so long as the plaintiff’s proposed method appears to be valid.  That stands in contrast to the approach adopted to four other circuits, which require district courts to resolve material factual disputes that bear on Rule 23 requirements.      Warner’s brief contends that the Supreme Court should reverse the District of Columbia Circuit, clarify that the majority rule is controlling, and require district courts to resolve material factual disputes that bear on Rule 23 requirements.  The watering down of the rigorous analysis required for class certification can have considerable, and usually dispositive, effect on class actions in a wide range of contexts. DRI’s members are frequently confronted by the precise issue raised by this petition, and their clients are affected by the erosion of the rigorous analysis standard required by the U.S. Supreme Court.